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FHFA, Fannie Mae, and Freddie Mac File Suit Challenging Imposition of State and Local Taxes
On June 22, the FHFA, along with Fannie Mae and Freddie Mac (the Enterprises), filed a lawsuit in the U.S. District Court for the Northern District of Illinois challenging the authority of Illinois state and county officials to impose transfer taxes on transactions moving property to or from the Enterprises. Although the complaint concedes that federal law requires the Enterprises to pay real estate taxes on the value of properties held, it asserts that federal law exempts the Enterprises from other state and local taxation, including taxes tied to property transfers. This suit follows a class action raising the same issues, which was filed by a Florida county against FHFA and the Enterprises on June 15.
Federal Agencies Announce New Mortgage-Related Policies to Support Military Homeowners
On June 21, the CFPB, the federal prudential banking regulators, and the FHFA announced new policies to support servicemember homeowners. The CFPB, the Federal Reserve Board, the FDIC, the NCUA, and the OCC issued joint guidance that identifies specific servicing practices deemed by regulators to present risks to servicemembers. For servicemember homeowners who have received Permanent Change of Station Orders, the guidance instructs servicers to maintain adequate policies and procedures disallowing the identified practices. The guidance also informs servicers that if an agency determines that a servicer has engaged in any acts or practices that are unfair, deceptive, or abusive, or that otherwise violate federal consumer financial laws, the agency will take appropriate supervisory and enforcement actions. Concurrent with the regulators’ announcement, the FHFA announced that military homeowners with Permanent Change of Station Orders and with Fannie Mae or Freddie Mac loans will be eligible to sell their homes in a short sale even if they are current on their mortgage. Under the new policy, Fannie Mae and Freddie Mac will not pursue a deficiency judgment or any cash contribution or promissory note from covered servicemembers for any property purchased on or before June 30, 2012.
FHFA Announces Multiple New Policy Initiatives
On June 15, the FHFA published a Notice of Proposed Rulemaking regarding state and local Property Assessed Clean Energy (PACE) programs, as required by a preliminary injunction issued by the Northern District of California in a lawsuit challenging the FHFA’s direction to Fannie Mae and Freddie Mac not to purchase mortgages subject to first-lien PACE obligations, and to the Federal Home Loan Banks to limit exposure to first-lien PACE programs. Under the PACE programs, local governments provide property-secured financing to property owners for the purchase of energy-related home improvement projects. The FHFA believes such financing arrangements present safety and soundness concerns. Several states challenged the FHFA actions in court. While most of the cases were dismissed, California succeeded in forcing the FHFA to conduct a formal rulemaking on the issue. Comments on the proposed rule are due by July 30, 2012.
On June 18, the FHFA announced an initiative to supplement fraud reporting by the entities it supervises. Under the Suspended Counterparty Program, Fannie Mae, Freddie Mac, and the Federal Home Loan Banks are required to notify the FHFA whenever an individual or company with whom they do business is adjudicated to have engaged in fraud or other financial misconduct. The FHFA also will consider information it receives from other government sources. Based on the reported information, the FHFA will make a determination as to whether the individual or business will be suspended from doing business with the supervised entities. The new program takes effect August 15, 2012.
On June 19, the FHFA published a Notice and Request for Comment regarding a proposed new rating system to be used in conducting safety and soundness examinations of Fannie Mae, Freddie Mac, and the Federal Home Loan Banks. The proposal seeks to implement a single risk-focused examination system for all three entities that would be similar to the “CAMELS” rating system used by federal prudential regulators for depository institutions. The FHFA is accepting comments on the proposed system through July 19, 2012.
Federal District Court Allows Interlocutory Appeal of Challenge to FHFA MBS Suit
On June 19, the U.S. District Court for the Southern District of New York granted defendants motion to certify an interlocutory appeal from a portion of the courts earlier denial of their motion to dismiss as untimely the FHFAs claims under the 1933 Securities Act. Fed. Hous. Fin. Agency v. UBS Americas, Inc., No. 11-5201, 2012 WL 2324486 (S.D.N.Y. June 19, 2012). On May 4, 2012, the court denied, in large part, the defendants motion to dismiss the FHFAs claims alleging that billions of dollars of MBS purchased by Fannie Mae and Freddie Mac were based on offering documents that contained materially false statements and omissions. The suit was selected to proceed first among the 18 such suits brought by the FHFA. In this most recent decision, the court reasoned that resolution of issues relating to the timeliness of the claims will remove a cloud of legal uncertainty that hangs over the other 17 actions in this suite of cases by clarifying the impact of the Housing and Economic Recovery Act of 2008 on the statute of limitations in the Securities Act of 1933 and, as a consequence, defining the scope of discovery.
FHFA Submits Annual Report to Congress
On June 13, the FHFA submitted to Congress its annual report on its 2011 examinations of Fannie Mae, Freddie Mac, and the Federal Home Loan Banks. The report rates Fannie Mae and Freddie Mac as “critical supervisory concerns” and states that their continuing credit losses stem primarily from loans originated during 2005-2007. The report cites certain key challenges of Fannie Mae and Freddie Mac, which include (i) the ongoing stress in the national housing market, (ii) the broader economic environment, and (iii) the lack of certainty about the future of Fannie Mae and Freddie Mac. Among other things, the report provides updated information about the Fannie Mae and Freddie Mac portfolios and foreclosure prevention efforts. The report also notes that the financial condition of the Federal Home Loan Banks remained stable, though exposure to private-label mortgage-backed securities continues to impact certain of the Banks.
Fannie Mae and Freddie Mac Update Servicing Requirements
On June 13, Freddie Mac published Bulletin 2012-13, which updates multiple servicing requirements in the Single-Family Seller/Servicer Guide. With regard to the state foreclosure timeline, the Bulletin (i) adds several circumstances in which the timeline will be extended for all foreclosure sales completed on or after January 1, 2012, (ii) revises the calculation for compensatory fees associated with exceeding a state foreclosure timeline, and (iii) alters the compensatory fee appeal process. With regard to certain operational procedures, the Bulletin (i) adds a time frame for reimbursement of taxes that were incurred and paid to a taxing authority for non-real estate owned expenses, (ii) allows wire transfers for REO-related remittances, and (iii) clarifies the time frame for submitting modification agreements to document custodians. The Bulletin also makes changes to the Guide related to unemployment forbearance, the quality right party contract performance standard, fraud prevention and reporting, and MERS Rule 14.
Also on June 13, Fannie Mae published Announcement SVC-2012-10, which updates its notice of data breach and incident response policy to require servicers to provide written notice to Fannie Mae of a data breach in addition to any reporting to consumers or state authorities required under applicable state law. A servicer also must request permission to use Fannie Mae’s name if it intends to refer to Fannie Mae in any notices sent to affected borrowers or regulatory agencies. On the same day, Fannie Mae also published Announcement SVC-2012-11, which updates and clarifies for all mortgages with a foreclosure sale date on or after January 1, 2012, (i) the maximum allowable foreclosure time frames for twelve jurisdictions, (ii) compensatory fee assessments and appeals, and (iii) the preferred method of foreclosure in Montana and Nebraska.
Freddie Mac Adjusts Standard Modification Interest Rate
On June 1, Freddie Mac announced that, as of July 1, 2012, servicers must use a new fixed interest rate when determining a borrowers eligibility for a Freddie Mac Standard Modification. Previously 5 percent, the new rate will be 4.625 percent. Servicers can also implement the new rate prior to July 1 if they desire.
Freddie Mac Announces Use of House Finance Agency Funds Eligible for Certain Relief Refinance Mortgages Payments
On May 24, Freddie Mac announced that, effective immediately, the use of Hardest Hit Fund (HFF) program funds by a state Housing Finance Agency may be applied to a Relief Refinance Mortgage if the funds do not result in a lien on the property and are used to (i) pay down or curtail the outstanding mortgage balance on a borrowers existing loan at the time of refinancing, and/or (ii) pay closing costs, financing costs and prepaids/escrows. When HFF funds are used for these purposes, the mortgage file must contain documentation verifying the terms and conditions of the HHF funds, and the HHF funds must be reflected on the HUD-1. When repayment of funds is required, the verified payment generally must be included in the monthly debt payment-to-income ratio, unless the calculation of debt payment-to-income ratio is not required or repayment of funds is due only upon sale or default.
CFPB Delays Release of "Ability-to-Repay" Rule
On May 31, the CFPB announced that it has reopened the comment period for the proposed “ability-to-repay” rule that would require creditors to verify a consumer’s ability to repay prior to making a consumer credit transaction secured by a dwelling. The rule would also define a “qualified mortgage” that has a presumption of compliance with the ability-to-repay requirement. The CFPB is specifically seeking comments on new loan data provided to the CFPB by the Federal Housing Finance Agency. According to the CFPB, the loan data, which contains loan-level information on the characteristics and performance of all single-family mortgages purchased or guaranteed by Fannie Mae and Freddie Mac, can be used to analyze the impact of certain variables on a consumer’s ability to repay such as debt-to-income ratio. The CFPB is also seeking comments regarding the potential risk of litigation in connection with the proposed rule. The CFPB specifies that it has not reopened for comment any other aspect of the proposed rule. Comments are due by July 9, 2012. In its press release, the CFPB states that it expects to issue its final rule before the end of 2012. For more information on the proposed rule, see InfoBytes, Apr. 22, 2011.
FHFA Seeks Public Comment on Strategic Plan
On May 14, the Federal Housing Finance Agency released for public comment a draft strategic plan for fiscal years 2013-2017. The draft plan updates FHFA’s existing strategic plan document to incorporate a proposal sent to Congress in February 2012 that outlined FHFA’s plan to build a new infrastructure for the secondary mortgage market, contract Fannie Mae and Freddie Mac’s current market dominance, and maintain the Enterprises’ roles in foreclosure prevention activities and refinance initiatives. The draft plan sets forth four strategic goals: (i) Safe and sound housing GSEs; (ii) Stability, liquidity, and access in housing finance; (iii) Preserve and conserve Enterprise assets; and (iv) Prepare for the future of housing finance in the U.S.